Child marriage and the law

Challenges, cautions and alarming statistics from new report

By Carmel Rickard

Tanzania and Mozambique are estimated to have more than 10 million child brides. These and other alarming statistics emerge from a new report by Equality Now. The report examines the prevailing situation of child marriage in eastern and southern Africa, including the legal frameworks and potential gaps in legislation. Some of its conclusions are particularly important to note for judges and lawyers who may be faced with cases of intended or concluded child marriage.

The minimum age for marriage, according to the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) must be 18 – with no exceptions. And the Southern African Development Community (SADC), agrees, with its model law on eradicating child marriage and protecting children already in marriage recommending that member states should not deviate from this minimum marriage age.

But a study by Equality Now (EN), commissioned by the UN Population Fund’s East and Southern Africa regional office, found that few countries observe these strong recommendations. And when it released the new report, EN urged other states in these regions to strengthen their legal protections against child marriage.

The countries with the highest numbers of child brides were Tanzania with 5.7 million and Mozambique with 4.4 million, while several others also have unacceptable statistics: Madagascar (2.9 million), Angola (2.5 million) and Malawi (2.2 million), for example.

Partner violence

Not all of these children are in formalised unions and many are cohabiting. EN gives the example of Angola where more than 80% of children in such marriages are in ‘informal unions’ while just 10% are formally married. But in other countries, the situation is reversed. Take Lesotho, where nearly all (95%) of the married children are in formal marriages, while just two percent are in informal unions.

The report includes telling details about the impact of early marriage on girls. Under age brides are far more likely to drop out of school than girls who aren’t married. They are also far more likely to become pregnant and those early-age pregnancies are significantly more liable to have fatal consequences than if the mother was not a child herself.

While these consequences should be well known, there is another problem that has perhaps been less obvious: child brides may have significantly lower quality of life. EN gives this illustration: ‘Lack of autonomy and freedom from violence compromises the quality of life of child brides. In South Africa, only 13% of women married before the age of 18 had bank accounts as compared to 50% of those who married at or after the age of 18, and 51% of women who have never been married. Similarly, 41% of women who married before the age of 18 had experienced intimate partner violence as compared to 21% of women who married at or after the age of 18.’

Puberty

But perhaps the most significant part of the report is a table showing the laws governing the issue of marriage age of the countries in the region. The table includes a clickable link on the relevant legislation of each country, and columns answering, for each country, the following three questions: What is the general minimum age of marriage in this country? Are there exceptions for customary/religious laws? Is parental/judicial consent for marriage below the general minimum age allowed?

Among those whose laws are strongly opposed to underage marriage is Democratic Republic of the Congo. There, the minimum age for marriage is 18 for both boys and girls – this is significant since some countries have different minimal ages for boys and for girls – while there are no exceptions made for child marriage under customary or religious laws. Likewise, there would be no exceptions even on the grounds of parental or judicial permission.

In Eswatini, three laws impact on the issue of marriageable age, and the present Marriage Act puts the minimum age for boys as 18 and as 16 for girls. In addition, Eswatini allows marriage from a younger age ‘for marriages contracted in accordance with Swazi law and custom’, since ‘customary law accepts marriage from puberty’. Even outside customary law, marriage is possible for under age children, since the ‘minister of justice can consent to marriage under the Marriage Act’.

Political influence

One thing becomes very obvious from the report. While the law in any country may be strict in stipulating a minimum age for marriage, and while it may even close the other loopholes by not providing for under age marriage under customary law or with special permission, that might not be the end of the story.

On paper Mozambique appears a model state: it has legislation entitled the ‘Prevention and Combating of Premature Unions Act’, it sets 18 as the minimum age for both boys and girls, has no provision for exceptions based on customary law or religion, nor for special parental or judicial permission. But it has the second highest rate of child marriage in the region – 4.4 million. These high figures may partly be the result of marriages concluded before the current legislation. If so, however, the situation illustrates the importance of acting swiftly to halt child marriage.

Likewise, on paper, Zimbabwe seems exemplary. It sets 18 as the minimum age for both partners and makes no exception on customary law or religious grounds or for judicial or parental permission to marry under 18. And yet, recent world headline stories about the deaths of child brides during or immediately after labour, makes it clear that such ‘marriages’ continue in Zimbabwe. What is worse, perhaps, is that police action and prosecution in the wake of child marriages and the deaths of child mothers, is rare. Local commentators say this is particularly so when these marriages and deaths happen in the context of religious sects since these sects ‘often have a lot of political influence’.

‘Best interests of the child’

In its analysis of the gaps and challenges in the laws of the sub-region, EN says top of the list is for countries to pass legislation that sets 18 as the minimal age for boys as well as girls. Attention also needs to be paid to ensuring that child marriage is prohibited ‘under all circumstances’, without religious or customary law exceptions.

In countries where there are provisions allowing parental/guardian or judicial/government consent for child marriage, this is on the grounds that it could be given where it is in the best interests of the child to do so. But as so many serious, negative consequences result from child marriages, including violation of human rights, it would be hard to justify ever giving such permission as in the ‘best interests’ of those concerned, says EN.

The report adds these further cautions – and, like the concerns in the above paragraph, they should be noted by judges from these countries: ‘Most laws which permit judicial or government consent for child marriages below the prescribed minimum age of 18 do not clearly provide guidelines for determining when such permission may be granted. In most of these countries, many of these exceptions also do not set an absolute minimum age of marriage i.e. an age below which even a judge or minister should not grant permission, thereby putting even very young girls at risk of being legally allowed to marry.’